The Ten Commandments Judge

A United States Court of Appeals has affirmed a federal district court order directing the Chief Justice of the Alabama Supreme Court to remove the large stone monument he had installed in the rotunda of Alabama's most important courthouse, which displays a Protestant version of the Ten Commandments. Glassroth v. Moore, 11th Cir. Nos. 02-16708 & 02-16949 (Decided July 1, 2003) (Opinion in .pdf)

The Ten Commandments Judge

When Roy S. Moore was an Alabama state trial court judge in the Circuit Court of Etowah County, Alabama, he got himself into trouble hanging a wooden plaque of the Ten Commandments in his courtroom. His actions raised quite a ruckus and inspired two lawsuits, one against him by some liberal do-gooders, one in his favor by the State of Alabama (naming as defendant, for no apparent reason the ACLU). The lawsuits never got anywhere but gave Judge Moore a lot of publicity. During his campaign for the Chief Justice position in the November 2000 election, then-Judge Moore’s campaign committee, capitalizing on name recognition from the lawsuits, decided to refer to him as the “Ten Commandments
Judge.”

Lawyers and litigants seeing the archaic and sectarian version of the Ten Commandments had best take it as fair warning: Justice Moore brings extreme, right-wing Evangelical dogma to work. In 2002, Moore wrote in a concurring opinion in an Alabama Supreme Court case, denying a lesbian mother custody of her children, that homosexuality is "abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature". (Moore's opinion will have to be revisited under the Supreme Court's recent decision in Lawrence v. Texas.) Moore has been quoted as saying he intends to "reclaim America for Christ, whatever the cost."

After getting elected Chief Justice of the Alabama Supreme Court, Justice Moore had a 5,280 pound marble monument of the Ten Commandments placed in the center of the rotunda of the Alabama State Judicial Building,in the middle of the night on July 31, 2001. That building houses the Alabama Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals, the state law library, and the state’s Administrative Office of the Courts. Justice Moore did this without the knowledge or consent of his fellow justices (but as Chief Justice, he had legal authority to decorate the rotunda as he saw fit.)

Privately raised funds paid for the sculpture, but Moore allowed a film crew from Coral Ridge Ministries -- the Religious Right organization run by Florida-based televangelist James Kennedy -- to tape footage of the monument's construction and installation. Coral Ridge later sold the videotape as a fundraiser and has paid for Moore's legal defense. 1

Whose Ten Commandments?

Before discussing the 11th circuit's opinion, let's take a close look at the monument so prominently displayed in the most important building in Alabama's judicial system. Chiseled onto the monument are excerpts from Exodus 20:2-17 of the King James Version of the Holy Bible.

The right one reads:
HONOUR THY FATHER AND THY MOTHER
THOU SHALT NOT KILL
THOU SHALT NOT COMMIT ADULTERY
THOU SHALT NOT STEAL
THOU SHALT NOT BEAR FALSE WITNESS
THOU SHALT NOT COVET

Note the presence of "Thou shalt not make unto thee any graven image."

Now open up any Catholic or Lutheran catechism and look up the Ten Commandments. (There's a copy of the relevant part of the Lutheran catechism here). The "graven image" thing isn't listed as one of the ten (it's considered commentary on the first commandment). For Lutherans and Catholics, the Second Commandment is "You shall not misuse the name of the Lord" (or more traditionally, "Thou shalt not take the name of the Lord thy God in vain"). But for Judge Moore, that's the Third Commandment.

The majority Christian view dates back to at least the 3rd Century C.E. and the teachings of St. Augustine, Bishop of Hippo. The radical Protestant view dates back to the Swiss reformers Calvin and Zwingli. For Calvinists, the radical second wave of the Reformation, veneration of statutes, particular statutes of the saints, was considered a "Roman" corruption of Christianity. Anti-Catholic bigotry aside, the Cult of the Saints quite clearly reflects the syncretic influence of the pagan religions and local religious practices indigenous to Europe prior to the coming of Christendom, not the "pure" Gospel of the early church.

Who is right, then? There are, in fact, well over six hundred (600) commandments in the Old Testament, though most of them pertain to a Temple-based worship and priesthood which no longer exists. Choosing only ten to retain is somewhat arbitrary, but it is traditional. The problem is: which words are "the" Ten Commandments? The words of the Bible cited as the source of the Ten Commandments, Exodus 20:1-17, Deuteronomy 5:6-21, do not neatly parse into ten commands, but in fact contain sixteen (16) imperative statements.

Asked which were the greatest commandments, Jesus mentioned only two (2): (1) Love God and (2) Love your neighbor as yourself. "All of the law and the Prophets hang on these two commandments." Matthew 22:40, see also Mark 12:28-31. A similar response is reported to have been given by Hillel, a famous Judean rabbi who was a contemporary of Jesus. "Love your neighbor" is not found at Exodus 20 or Deuteronomy 5, but rather is from Leviticus 19:18, but moreover summarizes the message of the Prophets. In another place, Jesus mentions six (6) commandments, five (5) of the original decalogue, plus "Love your neighbor": "Do not murder, do not commit adultery, do not steal, do not give false testimony, honor your father and mother, and love your neighbor as yourself." Matthew 19:18.

The one commandment which Jesus always named among the most important --"Love your neighbor as yourself"-- is not engraved on Justice Moore's monument.

The Eleventh Circuit's Ruling

After dispensing with some very lame evidentiary objections, the federal appeals Court examined the law underlying the district court's order. Federal courts take a very pragmatic approach to religious displays in public places, in which context plays the deciding role. This case wasn't even close to any gray area. The display is clearly intended to impose a religious view --a narrow sectarian view, at that-- and it is smack in the middle of courthouse where it cannot be avoided or go unnoticed.

Finally, the Court turned to Justice Moore's contention that he acted on behalf of the Supreme Court of Alabama and therefore was not obliged to agree with the federal court's view of the law, but rather had a duty to interpret the law as he understood it.

The Eleventh Circuit's institutional memory can recall the days when Southerngovernors would assert their oath of office as a defense against federal court orders mandating desegregation.

That, of course, is the same position taken by those southern governors who attempted to defy federal court orders during an earlier era. * * * Any notion of high government officials being above the law did not save those governors from having to obey federal court orders, and it will not save this chief justice from having to comply with the court order in this case. * * * when the time comes Chief Justice Moore will obey that order. If necessary, the court order will be enforced. The rule of law will prevail.

Update:

August 25, 2003.

Justice Moore's efforts to get a stay of the district court's ruling pending appeal, either from the Court of Appeals or the United States Supreme Court, have all been rejected. The deadline imposed by District Judge Thompson for removal of the two-ton monument (now known as "Roy's Rock") came on August 20, 2003, and went without compliance from the Chief Justice of the Alabama Supreme Court. As a result, the other ten associate justices of the Alabama Supreme Court voted unanimously to overrule their Chief Justice and direct their building manager to remove the monument. On Friday, August 22, 2003, the other justices also voted to suspend Chief Justice Moore and set a trial to determine whether he should be removed from office for violation of Alabama's judicial ethics rules.

Meanwhile, protesters gather at the Alabama Supreme Court building to express support for the suspended justice and prevent the removal of the monument.

Justice Moore rejects comparisons to George Wallace and thinks his "civil disobedience" should be compared to Dr. Martin Luther King, Jr.. Anthony Sebok, columnist for Findlaw's "Writ", a web publication of legal commentary, demolishes this comparison by reference to Dr. King's Letter from the Birmingham Jail. The ruling that the monument should be removed does not subject a disenfranchised minority to disparate treatment. Civil disobedience is the last refuge of the powerless, but Justice Moore abused his position of power to have the monument installed. Sebok contrasts Moore's dilemma with a more difficult problem: judges in the North who refused to enforce the Fugitive Slave Law in the years before the American Civil War.
See:http://writ.news.findlaw.com/sebok/20030825.html.

The writing style of Judge Carnes of the Eleventh Circuit, who wrote the court’s opinion in Glassroth v. Moore, No. 02-16708 (11th Cir. July 1, 2003), suggests that Judge Carnes may have the making of another Alex Kozinski or Michael Musmanno.

Much like Kozinski and Musmanno, Carnes injects a certain degree of wry humour into his opinion. One particularly good example of this is how Judge Carnes disposed of Chief Justice Moore’s (a/k/a The Ten Commandments Judge) more preposterous assignments of error. Moore claimed that the District Court’s decision – holding that Moore’s 5280-pound slab of Biblical granite violated the Establishment Clause – should be reversed because “the district court judge should not have made any
factfindings based upon his viewing of the monument and its surrounds.” Slip op. at 14. As Carnes noted, there was just one little problem with Moore’s complaint, namely
that Moore was the one who asked the district court judge to look at the Chief Justice’s pet rock in the first place.

Chief Justice Moore claimed that he was somehow under the impression that the district court judge would only use the view to put the monument in “a physical context.” Obviously, when one looks at something to
determine “physical context,” it’s simply unheard-of that they might actually seesomething in the process, or, as Judge Carnes put it, to say that the judge
“cannot receive evidence by simply viewing the scene is to insult common sense,” Slip op. at 16, (quoting Foster v. State, 12 So. 822, 823 (Miss. 1893).) However, the Eleventh Circuit didn’t see any particular need to entertain this idiocy, since Chief Justice Moore’s lawyer had been so “eager” to have the district court judge view the scene “just like a juror would,” that he even
offered to help the district judge park. Slip op. at 19. If anything, said Judge Carnes, this was invited error – a procedural violation by a judge that cannot be objected to because the person who claims to have been
prejudiced by it actually invited the judge to commit it. However, it was much more than that. “Any conceivable error was not just invited error, but invited error with a parking space.” Slip op. at 19. Anyone writing an outline on Evidence, take note: this is history in the making, the birth of the “parking space error” doctrine.

The Carnes wit makes its appearance later on, upon arriving at the substantiveconstitutional issue: whether the chief administrative official of a state’s judiciary may, for openly religious purposes, erect a massive stone monument with the inscription “I AM THE LORD THY GOD” in a government building without violating the Establishment Clause of the First Amendment. This area of law is governed by Lemon v. Kurtzman, 403 U.S. 602 (1971), a Supreme Court decision that is, by now, only slightly less battered than a 1973 Ford Pinto. The Lemon test, as it is commonly called, has three elements:

(1)
There must be a secular legislative purpose;
(2)
There must be no “primary effect” of advancing or inhibiting religion;
(3)
There must not be “excessive government entanglement” with religion,

See 403 U.S. 612-13. Justice
Scalia has compared the Lemon test to a B movie horror monster:

Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman, 505 U.S. 577, 586-587, 120 L. Ed. 2d 467, 112 S. Ct. 2649 (1992), conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. {* * *}

The secret of the e.g., Lynch v. Donnelly, 465 U.S. 668, 679, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e.g., Aguilar v. Felton, 473 U.S. 402, 87 L. Ed. 2d 290, 105 S. Ct. 3232 (1985) (striking down state remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh
v. Chambers, 463 U.S.
783, 77 L. Ed. 2d 1019, 103 S. Ct. 3330 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts," Hunt
v. McNair, 413 U.S. 734,
741, 37 L. Ed. 2d 923, 93 S. Ct. 2868 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

“While we are somewhat diverted by JUSTICE SCALIA'S evening at the cinema, post, at 398-399, we return to the reality that there is a proper way to inter an established decision and Lemon, however frightening it might be to some, has not been overruled. This case, like Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 97 L. Ed. 2d 273, 107 S. Ct. 2862 (1987), presents no occasion to do so. JUSTICE SCALIA apparently was less haunted by the ghosts of the living when he joined the opinion of the Court in that case.

508 U.S., at 395 n.7. Against that background, Judge Carnes wryly notes that “we follow the tradition in this area by beginning with the almost
obligatory observation that the Lemon test is often maligned.” Slip op. at 31. However, Judge Carnes also noted that “it is even more often applied,” and found the Chief Justice’s granite to violate the Establishment Clause.

The irony eluded me for too long. When the irony struck me, I wondered why I had not realized it before. And I wondered why people were arguing over legal precedence when the irony was staring them in the face, making the whole thing so ridiculous. Above, Haze brings up the issue, for several paragraphs, but doesn't even mention the irony.

For those not familiar with the Ten Commandments, one of them says: "you shall not make a graven image". Throughout the history of Christianity, this has been ignored often enough, and for various periods, the strongest symbols of religious discourse were graven, or at least painted images. However, if you are making a big deal about telling people not to engrave images, maybe a good place to start would be not to start setting up graven images.

Although some people may argue on the technicalities of it, a monument to the Ten Commandments can be every bit as much of an idol as a statue of Zeus. The Ten Commandments so solemnly set up are just another graven image, which they of course forbid. Martin Buber, a liberal but mainline Theologian, wrote a short but piercing essay where he points out that the Ten Commandments are directly from the mind of God to the conscience of Humanity. Zeus, presumably, is not real, and making a statue of him only misleads you about something that does not exist. The Ten Commandments, the idea that their is a direct moral voice speaking to people, are no more tangible than Zeus, but are very real. An attempt to turn them into a tangible reality, either through turning them into stone or political power only distracts from their reality.

Europeans have been nominally Christianized for many centuries now, but they keep on missing the point, turning the sublime into what they really worship: Blood and Soil. Here, we see a strong moral message turned into blood, in the sense that it is part of a communal heritage, and into soil in the direct way that people are developing a religious attachment to a piece of rock.